United States v. Dahda

853 F.3d 1101, 2017 WL 1228545, 2017 U.S. App. LEXIS 5791
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 4, 2017
Docket15-3236
StatusPublished
Cited by21 cases

This text of 853 F.3d 1101 (United States v. Dahda) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dahda, 853 F.3d 1101, 2017 WL 1228545, 2017 U.S. App. LEXIS 5791 (10th Cir. 2017).

Opinions

BACHARACH, Circuit Judge.

Mr. Los Dahda was convicted of crimes growing out of an alleged marijuana distribution network centered in Kansas. The convictions resulted in a sentence of imprisonment and a fine of $16,985,250. On appeal, Los1 presents six challenges to the convictions and sentence:

1. The evidence was insufficient to prove the conspiracy charged in count one.
2. An unconstitutional variance existed between (a) the single, large conspiracy charged in count one and (b) the trial evidence, which showed numerous smaller conspiracies.
3. The district court erred in denying a motion to suppress wiretap evidence because the wiretap authorization orders had allowed law enforcement to use stationary listening posts outside of the issuing court’s territorial jurisdiction.
4. The district court failed to instruct the jury that maintenance of drug-involved premises is committed only if storing or distributing drugs constitutes a principal or primary purpose for the defendant’s maintenance of the premises.
5. The district court violated the Constitution by sentencing Los to 189 months’ imprisonment on count one without a jury finding on the marijuana quantity.
6. The district court erred in imposing a $16,985,250 fine.

We reject Los’s first five challenges and agree with the sixth challenge. With these conclusions, we affirm the convictions, affirm the sentence of 189 months’ imprison[1106]*1106ment on count one, and vacate the fine of $16,985,250.

1. The Drug Distribution Network

The charges arose from a large drug-distribution operation that had been manned by over 40 individuals. These individuals obtained marijuana from California and distributed the marijuana in Kansas.

The operation began in 2006 when Mr. Chad Bauman, Mr. Peter Park, and Mr. Wayne Swift began working together to distribute marijuana in Kansas. At first, the individuals obtained their marijuana from Texas and Canada. Eventually, however, the three individuals changed sources and began obtaining their marijuana from California.

Mr. Bauman, Mr. Swift, or another member of the group would drive or fly to California, buy the marijuana, package it, store it in a California warehouse, and ship or drive the marijuana to Kansas.

Los allegedly joined the network as an importer and a dealer. In these roles, Los helped to facilitate the transactions by

• driving money from Kansas to California for someone in the group to buy the marijuana,
• assisting with the purchase and packaging of marijuana in California,
• loading marijuana into crates for shipment to Kansas, and
• selling the marijuana in Kansas to individuals who redistributed the marijuana to others.

The network operated for roughly seven years, but the relationships and work assignments varied over time. For instance, when a dispute arose, Mr. Bauman stopped working with Mr. Park and Mr. Swift. Nonetheless, Los continued to work with Mr. Bauman to acquire marijuana in California and transport the marijuana to Kansas for distribution there. About a year later, Los and Mr. Bauman stopped working together. At that point, Los resumed working with Mr. Park and Mr. Swift as the three individuals continued to acquire marijuana from California and distribute the marijuana in Kansas.

. The government began investigating the drug network in 2011. As part of that investigation, the government obtained wiretap authorization orders covering telephones used by suspected members of the network. Ultimately, Los was convicted on 15 counts.

II. Sufficiency of the Evidence

Count 1 charged Los and 42 others with a conspiracy encompassing 1,000 kilograms or more of marijuana. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), 846, 856; 18 U.S.C. § 2.2 Los argues that the trial evidence established only a series of smaller conspiracies rather than a single conspiracy involving 1,000 kilograms or more of marijuana. We disagree.

To review sufficiency of the evidence, we engage in de novo review, considering the evidence in the light most favorable to the government to determine whether any rational jury could have found guilt beyond a reasonable doubt. United States v. Yehling, 456 F.3d 1236, 1240 (10th Cir. 2006). In engaging in this review, we consider all of the evidence, direct and circumstantial, along with reasonable inferences. Id. But we do not weigh the evidence or consider the relative credibility of witnesses. United States v. Wells, 843 F.3d 1251, 1253 (10th Cir. 2016).

[1107]*1107To prove a conspiracy, the government had to show that (1) two or more persons agreed to violate the law, (2) Los knew the essential objectives of the conspiracy, (3) Los knowingly and voluntarily participated in the conspiracy, and (4) the alleged co-conspirators were interdependent. See United States v. Wardell, 591 F.3d 1279, 1287 (10th Cir. 2009). Determining the presence of these elements is a factual issue for the jury. See United States v. Dickey, 736 F.2d 571, 581 (10th Cir. 1984) (“It is essential to emphasize initially that the question whether there existed evidence sufficient to establish a single conspiracy is one of fact for the jury to decide”). This issue turns here on the existence of a common, illicit goal. See id. at 582.

A. Sufficiency of the Evidence on a Single Conspiracy Involving 1,000 Kilograms or More of Marijuana

The trial evidence was sufficient to show the existence of a single conspiracy involving 1,000 kilograms or more of marijuana. In part, this evidence included testimony by co-defendants Park, Swift, Bauman, Alarcon, Villareal, and Mussat. Their testimony was corroborated by recorded conversations, surveillance, seizures, and business records. Together, this evidence showed that Los and others had traveled to California to purchase marijuana, joined efforts to transport the marijuana to Kansas, and coordinated the delivery of marijuana after returning to Kansas. This evidence was sufficient to show formation of a conspiracy with a common goal between all of the participants to acquire and distribute marijuana. See United States v. Dickey, 736 F.2d 571, 582 (10th Cir. 1984); cf. United States v. Edwards, 69 F.3d 419, 431 (10th Cir. 1995) (holding that unity of purpose was proven by evidence that the defendants had pooled resources to “periodically travel to Houston to purchase cocaine, and divide the cocaine among the defendants upon return to Tulsa”).

Los counters that the government failed to show a single conspiracy because

• the relationships between co-defendants sometimes changed over the course of time and
• the evidence did not show interdependence among co-conspirators.

Both arguments are unavailing.

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Bluebook (online)
853 F.3d 1101, 2017 WL 1228545, 2017 U.S. App. LEXIS 5791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dahda-ca10-2017.